Citation Nr: 1616324 Decision Date: 04/25/16 Archive Date: 05/04/16 DOCKET NO. 09-47 298 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a rating in excess of 40 percent for service-connected diabetes mellitus type II. 2. Entitlement to service connection for peripheral neuropathy of the upper and lower extremities. 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a psychiatric disability, claimed as a nervous condition to include major depression and dysthymia, to include as secondary to service-connected diabetes mellitus type II. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Michael Sanford, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to April 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In July 2014, the Board remanded these matters for further evidentiary development. In the March 2016 Appellate Brief, the Veteran's representative argued that documents belonging to R.V.M. were improperly associated with the Veteran's claims file. However, a review of the claims file reveals that the Veteran changed his name from R.V.M. in December 1977. See December 1977 Order on Name Change. Thus, the Board concludes that no documents belonging to another individual are part of the Veteran's claims file, and the Board has listed the previous name as used in prior VA documents on the title page to avoid future confusion. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In July 2014, the Board remanded these matters, inter alia, for the AOJ to obtain Social Security Administration (SSA) records. In September 2014, SSA notified the AOJ that records related to the award of SSA benefits had been destroyed. The AOJ took no further action regarding SSA records. In the July 2014 remand, the Board stated that "[t]he non-existence or unavailability of such [SSA] records must be verified and this should be documented for the record. Required notice must be provided to the Veteran his or her representative." Significantly, 38 C.F.R. § 3.159(e) requires notice to the Veteran that contains the following information: "(i) The identity of the records VA was unable to obtain; (ii) An explanation of the efforts VA made to obtain the records; (iii) A description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and (iv) A notice that the claimant is ultimately responsible for providing the evidence." By not providing the required notice of the unavailability of SSA records, the AOJ did not comply with the prior remand instructions and the mandates of 38 C.F.R. § 3.159(e). See Stegall v. West, 11 Vet. App. 268 (1998) (holding where the remand orders of the Board are not fully implemented, the Board itself errs in failing to insure compliance). In this regard, the Veteran's representative explained that "[w]henever the VA is unable to obtain [identified] records after "reasonable efforts," the VA must notify the claimant about this failed effort." March 2016 Appellate Brief. The representative went on to state that "[i]f the regional office has not complied with any of these duties, the American Legion requests that the case be remanded for proper notice, development and assistance." For the reasons indicated herein, the Board will grant this request. Recently, the United States Court of Appeals for Veterans Claims (Court) has emphasized the importance of notice under 38 C.F.R. § 3.159(e), where VA unsuccessfully attempts to obtain potentially relevant records. McKinney v. McDonald, __Vet. App. __, No. 13-2273, 2016 WL 932820, *16 (Mar. 11, 2016). For the foregoing reasons, another remand is necessary to comply with the directives of the July 2014 remand and the notice mandates of 38 C.F.R. § 3.159(e). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a notice letter that advises him that SSA records are unavailable. Such notice must include (1) an explanation of the efforts VA made to obtain the SSA records; (2) a description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and (3) notice that the claimant is ultimately responsible for providing the evidence. 2. After the above development has been completed, readjudicate the claims on appeal. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).